Following last year’s widespread sexual harassment revelations, workplace bullying is back in the news. In recent weeks there have been press reports of a bullying culture in Westminster, and teachers at the NASUW's annual conference complained that bullying at work made them ‘feel suicidal’.
Acas guidance defines bullying as “offensive, intimidating, malicious or insulting behaviour, an abuse or misuse of power through means that undermine, humiliate, denigrate or injure the recipient”.
Harassment is defined in the Equality Act 2010 as “unwanted conduct related to… [race, sex, age, sexual orientation, religion or belief, disability or gender reassignment]… which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual”.
In practical terms, workplace bullying can occur face to face, or via written or verbal communications (for example, email, telephone calls or social media). It may take place in a formal workplace setting, or occur outside the workplace between colleagues. Sometimes the bullying will be fairly obvious (for example, spreading malicious rumours, or shouting at or insulting someone in front of others).
However, in many cases, particularly where a manager is bullying a subordinate, the bullying may take more subtle forms: for example, setting the subordinate up to fail by overloading them with work beyond their capacity or experience; overbearing supervision; or making unfounded threats about job security.
What are an employer’s legal obligations?
There are four main types of claim that a bullied employee may bring against their employer:
- A claim for harassment or discrimination under the Equality Act, where the bullying relates to race, sex, age, sexual orientation, religion or belief, disability or gender reassignment.
- A claim for personal injury where the stress of the bullying has caused the victim to suffer a psychiatric injury.
- A claim under the Protection from Harassment Act 1997, where there have been at least two occasions of intentional bullying that the wrongdoer knew or ought to have known amounted to harassment.
- A claim for constructive unfair dismissal if the bullied employee resigns as a result of the bullying.
In some situations, the victim may also bring a claim directly against the bully, although the employer is often vicariously liable for the bully’s actions.
Why should employers be concerned?
It is clear that workplace bullying carries significant legal risks for employers. However, perhaps more importantly, it’s bad for business. Left unchecked, it can have a significant negative impact on staff morale and employee relations, lead to reduced productivity and poor performance, and result in increased absence rates and a higher staff turnover.
It’s in an employer’s best interests to take preventative measures to minimise the occurrence of workplace bullying, and to have robust policies and procedures to swiftly tackle it if it does occur. Practical measures that an employer can take to mitigate the risk include:
- making sure staff are clear about how to complain if they experience workplace bullying (for example, via a grievance procedure, or specific dignity at work procedure);
- having robust appraisal and performance management processes – it is not uncommon for bullying allegations to be made when an employee’s performance is being negatively criticised;
- referring to bullying as an act of misconduct in your disciplinary policy;
- providing line management training to managers (many managers have had no formal training on the dos and don’ts of management); and
- fostering a workplace culture in which it is clear to all staff that bullying and harassment will not be tolerated, and that staff making complaints about bullying will be taken seriously.
Jeff Middleton is a partner and head of employment at Hill Dickinson